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Wednesday, July 25, 2012

Being found incompetent to stand trial does not mean a person will never face his charges. Incompetent to Stand Trial is not a legal defense like Not Guilty By Reason of Insanity is. It is a matter of legal fact that must be decided by the court.

I have been asked numerous times if James Holmes will escape punishment if he is found incompetent. Many people are legitimately assuming the issue of competence will be raised in his case, and it is understandable for people to be worried that it might be a loophole in the law, or a way for him to avoid punishment.

A little background on legal competence to stand trial: it is incredibly important for an individual to understand what is happening in court, to be able to think rationally about courtroom proceedings, and to be able to work with an attorney to assist in developing a defense. In Colorado, where Holmes will be tried, he must have a rational and factual understanding of the criminal proceedings against him and he must have sufficient present ability to rationally cooperate with his attorney to assist in his defense. If he does not have either of these abilities, it must be determined that his "incompetence" is caused by either a mental disability or developmental disability.

If a person is not competent but faces trial anyway, there are multiple grounds for appeal if convicted. The person can argue that he had ineffective counsel, he can argue that he did not receive due process, and he can make a claim that he did not have an actual opportunity to confront his accusers, tell his side of the story, or present evidence in his defense. If a conviction (and thus a sentence) is overturned, there is a chance the perpetrator can walk free.

Because of the risk of overturning a conviction on appeal, it is my guess that the Arapahoe County DA will raise the issue of incompetency with the court if the public defender does not. The DA will want to make sure Holmes' competency-related abilities are documented in the record before he faces his charges so there aren't any questions about them afterward if he is convicted.

The Colorado Mental Health Instituteat Pueblo (CMHIP) Campus

With that in mind, what happens if the issue of competency is raised in People v. James Holmes? The judge cannot ignore a request for the competency issue to be examined. The court will order a competency evaluation, and most likely, Holmes will be sent to the Colorado Mental Health Institute at Pueblo, the state mental health hospital, to undergo a competency evaluation. I know most of the psychologists who work at this hospital, and they are excellent. Holmes will be evaluated by some of the best forensic psychologists in the country. After a few weeks of evaluation, these psychologists will offer an opinion on whether or not Holmes is competent. It will then be up to the judge to make the final legal ruling.

If Holmes is deemed competent to stand trial, his legal case will proceed just like normal. If he is found incompetent, he will be remanded back to the hospital in Pueblo, where he will undergo "restoration to competency" treatment. Every 90 days, psychologists will update the court on Holmes' progress in treatment.

One of two things will happen at this point: Either 1) he will be restored to competency and will face his charges just like normal, or 2) he will not be restored to competency and will not face his charges.

But wait, didn't I just write that being found incompetent is not a free pass? How is not facing multiple first-degree murder (and countless other) charges not a free pass? Here is the catch: In Colorado, a person can be locked in a maximum security wing of the state hospital, which is very similar to prison, until he is restored to competency or for the maximum term of confinement that could be imposed for the offenses with which he is charged.

To say it in plain English, if Holmes is not restorable to competency, he will be locked in Pueblo for at least 12 life sentences, even though he was never convicted of a crime. There is a chance that the defense could successfully argue that the court should drop the charges against him if he is unrestorable or that the judge could allow him out of custody on bond, but given the nature of his alleged crimes, both of these possibilities is extremely unlikely.

So, even if Holmes is found incompetent, the only way he will go free is if he is restored to competency, takes his case to trial, and is found Not Guilty on every one of the dozens of charges he faces.

Dr. Wachtel~~If possible, would you speak to the "restoration to competancy" treatment process? It's difficult to imagine how a mentally ill patient would comply with the use of medications. To my mind, it seems that such patient must agree, or be willing enough, to ingest medications in pill form, yet a severely ill person (seemingly) would never agree. Are IV medications traditionally used? In my past experience [working with children with severe behavioral disorders], I've seen how difficult it is to guarantee mandated ingestion of needed medications in situations with the severely mentally impaired.

If a person is refusing medications, the state can ask a judge to order medications be administered against the person's will. Many of the medications he might take are available in the form of long-acting shots. Getting a court to order medications is extremely difficult, however.

I worked for a number of years at a psychiatric hosptial with a forensic unit. If any criminal arrived thinking they were getting an easier option than prison, they quickly changed their mind and begged to be sent back to prison. As one example of this, at the US Medical Center for Federal Prisoners in Springfield, MO, if a regular inmate is found guilty of a serious rules violation, he is placed in a cell on one of the psychiatric wards. This punishment was feared far beyond all others.

I don't understand why he hasn't had a competency evaluation, but he's had a sanity evaluation. I'm looking at something dated June 19, 2013 which mentions a sanity evaluation but makes no mention of a competency evaluation. It's addressed to Judge Samour and signed by William May, the Superintendent of CMHIP.

Did I miss something? CMHIP would mention them separately, if they were both performed. At least, they claim that they would mention them separately. I inquired as to a hypothetical defendant, and that was their "official" answer.

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What do you believe about the probability of release for a three time repeat offender with charges of 14 violation of protection order, felony harassment, and stalking who is not restored to competency? We are terrified she will be set free to come after us yet again and each time she is released her actions are much more bold and threatening.

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I had a case against someone that used my credit card information to buy several things. I took it to court....after dragging on in our court system for over a year this person attacked her physician in their office and was arrested by police. She was released and did not show up for court so she was arrested again. The courts did a psychological evaluation and found her incompetent, so no trial, the courts gave her a 'get out of jail free card' and released her. She just has to be reevaluated every six months. Since the courts found her incompetent in that case they dropped my case as well...so now there's two cases that she gets to walk away from. This person writes things about my family on FB....harasses my son through e-mail and instagram but guess what? She's incompetent so too bad for us! She is not too incompetent to have a job,to have an apartment, to apply for a government grant to go to college and receive it or to work towards an Art degree. She is ONLY incompetent to take responsibility for her actions. That is total injustice! She can blame an innocent person of anything and have them arrested (as she has already done) but if she commits a crime against someone she will walk....with no record! By the way this same person has tried suicide three times, baker acted three times (since I've known her 3 1/2 yrs) has accused her stepdad, dad and ex boyfriend of being abusive, accused her stepmother of trying to have her murdered by doctors while in a mental hospital, accuses people of trying to poison her food, accused an ex of raping her, accused another ex of beating her when she actually battered him then she called the police and accused him and he was taken to jail, she had him prosecuted to 'teach him a lesson' he needed to do as she said. He was able to get the charges reduced but still will have a record because of this crazy woman. Now how is it that a person too incompetent to know the difference between right and wrong and has tried suicide 3 times,makes up accusations,attacked her physician, ex boyfriend and stolen money not been put away in an institution as to not harm anyone else? Does it take her murdering someone before the courts do something? Then you hear official saying , 'Something needs to be done about the mentally ill!' every time there is a senseless shooting by a mentally ill person. THEN DO SOMETHING!!!! It's a disgrace!

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